It began as a simple clause in Article I § 2. Whoever votes for members to the most numerous house in a state legislature is likewise qualified to vote for representatives to the US House of Representatives. States indirectly determined the qualifications of electors to the US House. So, from the start of our Constitutional republic, the Framers and the ratifying states expected diversity in voter qualifications across the states. The state-level civil society determined the extent of the political right to vote. What wonderful simplicity and wisdom. This is federalism.
Rather than make a long squib even longer, I will not print the various Constitutional articles and amendments referenced in this post. I trust my readers have a pocket-size Constitution readily at hand.
In a radical reordering of society after the Civil War, the states ratified three remarkable amendments. Recall from last week’s squib, Congress in this era still thought in the first-principle terms of our Framers. They viewed rights as belonging to one of three categories, Natural, Civil, or Political.
The 13th Amendment of 1865 recognized the Natural Right to freedom. Congress could have stopped there, and left ex-slaves as freedmen. Rather than do as Rome and accept a large population in an in-between condition between slaves and citizens, Congress acted in 1868.
The first section of the 14th Amendment of 1868 made citizens of freedmen. As citizens, they were members of the civil society entitled to civil rights, and no state could abridge their privileges or immunities. Nor could a state deprive anyone, including those here illegally, of equal protection under the law. This nuanced distinction between the civil rights of citizens and non-citizens is important and worth remembering. By implication, the states could abridge the privileges and immunities of non-citizens.
Section 2 of the 14th Amendment compelled Congress to punish the states if they denied the political right of blacks to vote. The only sensible explanation of Section 2 is that Section 1 permitted racial voter qualifications. Thus, the franchise is not a civil right; equal protection of the law is an irrelevant and non-sensical standard when applied to the political right to vote.
The 15th Amendment established the political right of all races to vote.
Look at civil v. political rights this way. From the moment of conception, certain civil rights extend to citizen and alien alike, everyone in the US.1 Unlike civil rights, the political right of citizens to vote doesn’t extend to the unborn or children, nor to citizens under twenty-one (now eighteen) years of age. Should a state deny the right to vote to any male citizen over twenty-one, Section 2 of the 14th Amendment compels Congress to diminish the state’s representation in the House and Electoral College. This is the Constitutional solution to a specific political problem. If the drafters of the 14th Amendment intended to extend the franchise to everyone as a civil right, there was no need for Section 2, nor the 15th and 19th Amendments.
The 19th Amendment of 1920 proves that the corruption of Scotus enabled by the 17th Amendment hadn’t yet taken hold. By this I mean that if the franchise was a civil right, there was no need to bother with the time-consuming process of formally amending the Constitution to grant the political right of women to vote. The view of rights as belonging to one of three categories, Natural, Civil, and Political still held some sway in 1920.
But, as the corruption brought on by the 17th Amendment wormed its way through our governing institutions, as evidenced by the consent of the Senate to New Deal judges nominated by a very popular President Roosevelt, the traditional view of rights diminished. Now, Article 1 § 2 still remained. The states determine voter qualifications subject only to the no-noes of Amendments XIII – XV and XIX. Payment of a poll tax2 and demonstration of basic literacy were Constitutional qualifications on the political right to vote in 1920 not because they were ‘good’ or ‘bad’, but because neither violated the post-Civil War voting related amendments. States may deny to felons, as per the 14th Amendment § 2 , the political right to vote.
In 1964, through its Reynolds v. Simms decision, Scotus established itself and Congress as the superior arbiters of the states’ Article I § 2 authority. Reynolds: “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the rights of citizens to vote must be carefully and meticulously scrutinized.” With Reynolds, our government ceased to view rights in terms of Natural, Civil, or Political; it created a new category of its own: Fundamental Rights.3
Abracadabra! Through its own will and nothing else, Scotus transformed the political right to vote into a fundamental civil right. As a fundamental civil right, challenges to state laws regarding voter ID, ballot access, literacy tests, duration of residency, registration, apportionment and redistricting as they affect the races . . . all of them are subject to strict scrutiny in which the defendant, the state, must prove that it has a compelling interest in its voting laws. The general presumption of constitutionality afforded state statutes doesn’t apply to so-called fundamental rights, to laws that do not violate amendments XIII-XV, XIX, XXIV, XXVI.
From Reynolds, “the franchise is the guardian of all other rights,” and the Equal Protection Clause protects the citizens constitutional right to participate in elections. Other asserted state interests, such as knowledgeability of voters, common interests, intelligent voting—were impermissible interests. 4
The franchise was a recognized political right from 1789 to 1964. Only the post-civil war Constitutional amendments limited state-formulated voter qualifications. When Scotus declared the equal protection clause of the first section of the 14th Amendment applied to voting rights, the role of Congress expanded far beyond its duty to punish errant states through diminution of its congressional delegation via section 2. The 1965 Voting Rights Act picked up where Reynolds stopped; the unconstitutional elevation of Scotus-determined rights as fundamental, protected by the equal protection clause, all but gutted the states’ duty to set voter qualifications. Indeed, instead of the states determining the qualifications of its state-level voters, Reynolds turned Article I § 2 upside down; the national government determines the qualifications of voters to Congress, which in turn determines state-level voter qualifications.
It gets worse. Scotus did not, as it could have, regard the franchise as a privilege limited to citizens in Section 1 of the 14th Amendment. Instead, Scotus unconstitutionally and intentionally granted it equal protection under the law, which applies to any person in the United States. It is why patriots should fear and anticipate a future Scotus will decree a so-called Fundamental Right to vote extends to everyone, citizen and illegal alien alike, across the United States.
Like modern-day hackers, Scotus long ago introduced malware to our operating system, our Constitution. Article I § 2 is just one of many corrupted files. The time is long past to cleanse and restore our operating system, our Constitution.
We are the many; our oppressors are the few. Government is the playground of politicians, but the Constitution is ours. Be proactive. Restore the American Tradition. Join Convention of States.
1. Graham v. Richardson, 403 U.S. 365, 371 (1971), and except, of course, for the carve-out by Scotus in Roe v. Wade.
2. The 24th Amendment prohibited the poll tax, or any other tax qualification to vote.
3. Scotus regards abortion as a Fundamental Right.
4. Voting is not the guardian of all other rights. An elective despotism is still a despotism. Voting, as the ultimate protector, renders our governing plan no better than the British system. The Sovereign Capacity of the people expressed through Article V is the guardian of all other rights.